Citation Nr: 0923688
Decision Date: 06/23/09 Archive Date: 07/01/09
DOCKET NO. 04-02 432 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Hartford,
Connecticut
THE ISSUE
Entitlement to service connection for posttraumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Connecticut Department of
Veterans Affairs
WITNESSES AT HEARING ON APPEAL
The Veteran and C.S.
ATTORNEY FOR THE BOARD
J. L. Prichard, Counsel
INTRODUCTION
The Veteran had active service from June 1970 to February
1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal of a rating decision of the Hartford,
Connecticut, regional office (RO) of the Department of
Veterans Affairs (VA).
A hearing was held at the RO in May 2004. This case was
remanded in August 2005 and November 2006. These remands
concerned the scheduling of hearings before a Veterans Law
Judge. The Veteran's hearing request was withdrawn by letter
dated September 2007.
The Veteran's appeal was previously before the Board in
November 2007, when it was remanded for additional
evidentiary development. It has now been returned to the
Board for further review. Unfortunately, for the reasons
outlined below, the Board will find that the development
requested in November 2007 was not clearly completed.
Therefore, this appeal is REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, D.C. VA will notify
the Veteran if further action is required.
REMAND
The November 2007 remand requested that the Veteran be
afforded a VA examination in order to determine the nature
and etiology of any psychiatric disorders. This was
accomplished in April 2009. The VA examiner included an
excellent review of the Veteran's medical history, as well as
requested comments on VA treatment records dated April 1972.
The diagnoses were major depressive disorder, in partial
remission, and subclinical PTSD.
The examiner was to also include an opinion as to whether or
not the Veteran's psychiatric disorder was related to active
service. This was noted in the general remarks section at
the beginning of the examination report, but the examination
report does not clearly contain the requested opinion as to
the major depressive disorder. Reference is made to a
bipolar disorder that has been diagnosed, but it is not clear
whether that may equate to the depressive disorder herein
diagnosed. It may be that the examiner believed that the
opinion was necessary only in the case that PTSD was
diagnosed, and that since the diagnoses included only
subclinical PTSD the opinion was not needed. However, the
remand clearly states that the examiner is to provide an
opinion "as to whether the veteran's psychiatric disorder(s)
is at least as likely as not related to his military
service...." Unfortunately, the examiner did not include a
specific opinion as to whether it is as likely as not that
the Veteran's major depressive disorder was related to active
service.
The Board is obligated by law to ensure that the RO complies
with its directives, as well as those of the United States
Court of Appeals for Veterans Claims (Court). The Court has
stated that compliance by the Board or the RO is neither
optional nor discretionary. Where the remand orders of the
Board or the Court are not complied with, the Board errs as a
matter of law when it fails to ensure compliance. Stegall v.
West, 11 Vet. App. 268 (1998).
Accordingly, the case is REMANDED for the following action:
1. The Veteran's claims folder should
be returned to the examiner who
conducted the April 2009 VA psychiatric
examination. The examiner should
provide an opinion as to whether the
Veteran's major depressive disorder is
at least as likely as not related to
his military service (that is, a
probability of 50 percent or better).
If the April 2009 examiner is
unavailable, then the claims folder and
the April 2009 examination report
should be forwarded to another examiner
qualified to render a psychiatric
opinion, and this person should provide
an opinion as to whether the Veteran's
major depressive disorder is at least
as likely as not related to his
military service. The Veteran need not
be scheduled for an additional
examination unless deemed necessary by
the examiner. If any new examiner
determines that an additional
examination is necessary, then the
examination should be conducted exactly
as requested in the second action
paragraph of the November 2007 remand.
The development pertaining to stressors
requested in the third action paragraph
of the November 2007 remand should also
be completed by the RO/AMC if there is
a diagnosis of PTSD.
2. After the development requested
above has been completed, review the
record. If any benefit sought on
appeal, for which a notice of
disagreement has been filed, remains
denied, the Veteran and representative
should be furnished a supplemental
statement of the case and given the
opportunity to respond thereto.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The Veteran need take no action until
otherwise notified.
The Veteran has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate
action must be handled in an expeditious manner. See 38
U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
_________________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).